UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BETHENERGY MINES, INCORPORATED, 

Petitioner,

v.

SHIRLEY ROWAN, widow of Delmer  No. 01-2148 B. Rowan; DIRECTOR, OFFICE OF

WORKERS’ COMPENSATION PROGRAMS,

UNITED STATES DEPARTMENT OF

LABOR,

Respondents. 

On Petition for Review of an Order of

the Benefits Review Board.

(00-0980-BLA)

Argued: May 6, 2002

Decided: September 4, 2002

Before NIEMEYER and GREGORY, Circuit Judges, and

C. Arlen BEAM, Senior Circuit Judge of the

United States Court of Appeals for the Eighth Circuit,

sitting by designation.

Affirmed by unpublished per curiam opinion. 

COUNSEL

ARGUED: William Steele Mattingly, JACKSON & KELLY,

P.L.L.C., Morgantown, West Virginia, for Petitioner. Richard K.
Wehner, WEHNER LAW OFFICES, Kingwood, West Virginia, for

Respondent Rowan. Rita A. Roppolo, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondent Director. ON

BRIEF: Eugene Scalia, Solicitor of Labor, Donald S. Shire, Associate Solicitor, Patricia M. Nece, Counsel for Appellate Litigation,

UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.,

for Respondent Director.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

This case comes before us for a second time on review from the

Benefits Review Board ("Board"). For the reasons that follow, we

affirm the ALJ’s order awarding the appellee survivor’s benefits

under the Black Lung Benefits Act, 30 U.S.C. §§ 901-945 ("Act"). 

I.

Delmer B. Rowan ("Rowan") worked as a coal miner for at least

twenty-four years.1 It is undisputed that in September 1992, Rowan

died from acute respiratory failure due to chronic obstructive pulmonary disease ("COPD"), and at the time of Rowan’s death, pneumoconiosis was found in his lungs.2

 Appellee Shirley L. Rowan

1He also smoked approximately a pack of cigarettes a day for 47 years.

J.A. 211. 

2

In December 1988, Rowan complained of significant shortness of

breath, coughing, and wheezing. J.A. 34. Rowan was diagnosed with

chronic obstructive pulmonary disease ("COPD") of a moderate to severe

degree in January 1989 and was placed on respiratory medication. J.A.

33. He was subsequently treated with steroids, but continued to suffer

from shortness of breath. J.A. 31. All of the physicians in this case

agreed that Rowan’s cigarette smoking caused, at least in part, his severe

pulmonary emphysema. 

2 BETHENERGY MINES v. ROWAN
("Claimant"), Rowan’s surviving spouse, applied for survivor’s benefits under the Act, asserting that pneumoconiosis substantially contributed to her husband’s death. 

The Office of Workers’ Compensation Programs initially approved

Claimant’s application for benefits, but at the request of BethEnergy

Mines, Inc. ("BethEnergy"), Rowan’s former employer, it forwarded

the claim to the Office of Administrative Law Judges. An Administrative Law Judge ("ALJ") weighed the evidence of the ten doctors who

rendered opinions in this case. All ten doctors agreed that pneumoconiosis was present in Rowan’s lungs, however, their opinions differed

as to the amount of pneumoconiosis present. Five doctors—Drs.

Franyutti,3 Gaziano, Harron, Rasmussen, and Doyle—were of the

opinion that pneumoconiosis contributed to the miner’s death. The

other five doctors—Drs. Bush, Kleinerman, Fino, Renn, and Hutchins

—opined that the pneumoconiosis in Rowan’s lung tissue was too

minimal to play any role in causing Rowan’s death. Each doctor submitted a letter explaining his medical opinion and/or was deposed on

his medical opinion as to the cause of Rowan’s death. 

In the 1994 order, ALJ Robert S. Amery credited the testimony of

the doctors who concluded that pneumoconiosis substantially contributed to Rowan’s death. He stated: 

While there are an equal number of experts on both sides,

I am more persuaded by the evidence in favor of the Claimant because: (1) Dr. Franyutti was the one who performed

the autopsy and was in the best position to make a judgment,

while none of the Employer’s doctors saw the miner after he

died, and (2) Dr. Gaziano was hired by the District Director

to make an evaluation and not by either the Claimant or the

Employer, so he has a more impartial status. Both Drs.

Franyutti and Gaziano believed that pneumoconiosis contributed to the miner’s death. Moreover, in considering this

issue, I am mindful of the miner’s many years of coal mine

employment. Under these circumstances, I find that the

Claimant has established that pneumoconiosis was a sub3Dr. Franyutti was the autopsy prosector. 

BETHENERGY MINES v. ROWAN 3
stantially contributing cause or factor leading to the miner’s

death within the meaning of Section 718.205(c). 

J.A. 225. The ALJ then ordered BethEnergy to pay Claimant’s benefits. 

BethEnergy appealed the ALJ’s decision to the Board, and the

Board affirmed the ALJ’s finding. BethEnergy next filed a petition

for review with this Court. We granted the petition, and in an unpublished opinion, vacated the Board’s decision with instructions to

remand the case to the ALJ. We found that:

[T]he ALJ had no basis for concluding that Dr. Franyutti’s

microscopic examination was superior to the opinions of

Drs. Kleinerman, Bush, and Hutchins. The ALJ also did not

provide an adequate rationale for concluding that Dr.

Franyutti’s opportunity to conduct a gross examination rendered his opinion superior to the opinions of Drs. Kleinerman, Bush, and Hutchins, who only conducted microscopic

examinations. 

Bethenergy Mines, Inc. v. Director, Office of Workers’ Compensation

Programs, U.S. Dept. of Labor, 92 F.3d 1176, 1996 WL 423126, at

*3 (4th Cir. 1996) (emphasis added). We therefore held that "because

the ALJ did not evaluate or sufficiently explain the weight accorded

the relevant evidence, the case must be remanded to the ALJ for further proceedings." Id. at *4. 

The Board remanded the case to the ALJ,4 who, like the first ALJ,

found that "better reasoned medical opinion evidence establishes that

the miner’s pneumoconiosis substantially contributed to [Rowan’s]

death, as provided by § 718.205(c)(2)," J.A. 246, and ordered

BethEnergy to pay Claimant survivor’s benefits. BethEnergy again

appealed the ALJ’s decision to the Board. The Board found that the

ALJ failed to adequately explain why he accepted the opinions of Drs.

Rasmussen, Doyle, and Harron. It vacated the ALJ’s finding and once

more remanded the case for reconsideration. 

4On remand, the case was assigned to a different ALJ, Thomas M.

Burke. 

4 BETHENERGY MINES v. ROWAN
On a third remand, ALJ Burke found that Rowan’s death was

caused or significantly contributed to by the admittedly present pneumoconiosis. ALJ Burke concluded that this determination could be

based on either (1) the extent of the pneumoconiosis throughout

Rowan’s lungs, or (2) the fact that Rowan’s emphysema was caused

in part by coal dust exposure. He ordered BethEnergy to pay Claimant

survivor’s benefits, and BethEnergy again appealed the ALJ’s decision to the Board. The Board affirmed on both grounds. BethEnergy

filed its second petition for review, which is now pending before this

Court.5

II.

In black lung cases, we review a claim under the Act to determine

whether substantial evidence supports the factual findings of the ALJ

and whether the legal conclusions of the Board and the ALJ are rational and consistent with applicable law. Bill Branch Coal Corp. v.

Sparks, 213 F.3d 186, 190 (4th Cir. 2000). "Substantial evidence consists of sufficient relevant evidence to convince a reasonable mind

that the evidence is adequate to support a conclusion." Scott v. Mason

Coal Co., 289 F.3d 263, 267 (4th Cir. 2002); see Milburn Colliery Co.

v. Hicks, 138 F.3d 524, 528 (4th Cir. 1998). Therefore, "we must

affirm the Board if it properly determined that the ALJ’s findings are

supported by substantial evidence." Doss v. Director, Office of Workers’ Compensation Programs, 53 F.3d 654, 659 (4th Cir. 1995). 

III.

BethEnergy asserts that the ALJ erred (1) in weighing the doctors’

opinions regarding the amount of pneumoconiosis in Rowan’s lungs,

and (2) in finding that Rowan’s centrilobular emphysema6 was caused

by coal dust exposure. Regarding the first alleged error, the ALJ, in

determining that the evidence supported a finding of diffuse and moderate pneumoconiosis, again credited Dr. Franyutti. The ALJ detailed

5Claimant and the Director of the Office of Workers’ Compensation

Programs, United States Department of Labor, are respondents in this

case. 

6Centrilobular emphysema is a type of pulmonary emphysema and

COPD. See J.A. 262. 

BETHENERGY MINES v. ROWAN 5
the opinions of each doctor, and explained that Dr. Franyutti had the

"superior opportunity" to observe the lung tissue because he "performed the autopsy, prepared the slides, and observed the lung tissue

in total." J.A. 262. We need not resolve this issue because even

assuming that the evidence was insufficient to support the finding that

the pneumoconiosis in Rowan’s lung tissue was of such a level to

have played a role in his death, the ALJ’s finding that Rowan’s

emphysema was caused in part by coal dust is sufficient to award survivor benefits here. 

For an ALJ to award survivor benefits, competent medical evidence must establish that the miner’s death was either due to pneumoconiosis or pneumoconiosis hastened the miner’s death in any way.

20 C.F.R. § 718.205(c)(1)-(2) (1992). See Clinchfield Coal Co. v.

Fuller, 180 F.3d 622, 623 (4th Cir. 1999). This burden is met where

the miner (1) had pneumoconiosis,7 (2) the pneumoconiosis arose

from coal dust exposure, (3) the coal dust exposure was caused by

coal mine employment, and (4) the pneumoconiosis hastened death in

any way. 20 C.F.R. §§ 718.201, 718.203(b), 718.205(c)(2) (1992);

Shuff v. Cedar Coal Co., 967 F.2d 977, 979-80 (4th Cir. 1992). 

In this case, it is undisputed that (1) Rowan had at least minimal

simple pneumoconiosis, (2) he had centrilobular emphysema, a type

of COPD, See Warth v. Southern Ohio Coal Co., 60 F.3d 173, 175

7

In 1992, pneumoconiosis was defined as: 

[A] chronic dust disease of the lung and its sequelae, including

respiratory and pulmonary impairments, arising out of coal mine

employment. This definition includes but is not limited to coal

workers’ pneumoconiosis . . . . For purposes of this definition,

a disease "arising out of coal mine employment" includes any

chronic pulmonary disease resulting in respiratory or pulmonary

impairment significantly related to or substantially aggravated

by, dust exposure in coal mine employment. 

20 C.F.R. § 718.201 (1992) (emphasis added). Claimant asserts that the

Court should apply the 2001 version of 20 C.F.R. § 718.201, which

includes COPD in its definition of pneumoconiosis, as opposed to the

1992 version, which does not. We apply the language of the 1992 version, which encompassed COPD within the definition. See Warth v.

Southern Ohio Coal Co., 60 F.3d 173, 175 (4th Cir. 1995). 

6 BETHENERGY MINES v. ROWAN
(4th Cir. 1995) (holding that COPD is encompassed within the definition of pneumoconiosis), (3) COPD was a substantial contributor to

Rowan’s death, and (4) Rowan worked in the mines for at least 24 years.8

Thus, the only question in dispute is whether Rowan’s centrilobular

emphysema was caused by coal dust exposure.

BethEnergy asserts that the ALJ improperly accorded the most

weight to Dr. Rasmussen, who opined that minimal simple pneumoconiosis with coal mine dust exposure is sufficient to cause centrilobular emphysema. It proffers the medical opinions of Drs. Renn,

Kleinerman, Fino, Hutchins, and Bush, who opined that coal dust

exposure does not cause centrilobular emphysema. 

The ALJ explained that he found Dr. Rasmussen’s testimony most

persuasive because Dr. Rasmussen offered extensive research to support his opinion. Dr. Rasmussen cited seven articles from medical

journals and six epidemiologic studies to support his position. J.A.

260. No other doctor offered such extensive research. 

In his opinion, ALJ Burke offered concrete reasons for discounting

the opinions of the other doctors who were critical of Dr. Rasmussen.

He noted that Dr. Renn’s testimony lacked the "definitiveness to outweigh the better reasoned and better supported report of Dr. Rasmussen." J.A. 263. Dr. Kleinerman’s disagreement with the medical

experts Dr. Rasmussen cited, were "in the most general of terms." Dr.

Kleinerman did not "critique any particular study or any specific data

behind a study." Id.

Furthermore, the ALJ found that Dr. Fino’s criticisms of studies

cited by Dr. Rasmussen are "insufficient to dismiss the studies that

support Dr. Rasmussen’s opinion," id., because while Dr. Fino disputed the "underlying data" of studies offered by Dr. Rasmussen, he

8

If a miner has pneumoconiosis, it is a rebuttable presumption that the

pneumoconiosis arose from coal mine employment if the miner worked

in coal mines for 10 years or more. 20 C.F.R. § 178.203(b)(1992). In this

case, it is uncontradicted that Rowan worked in coal mines for at least

24 years. Therefore, the ALJ properly presumed that Rowan’s pneumoconiosis arose out his mine employment. 

BETHENERGY MINES v. ROWAN 7
did not specify which studies of Dr. Ruckley had evidentiary problems.9

J.A. 264. Further, the ALJ stated that, "Dr. Fino doesn’t contend that

Dr. Rasmussen is incorrect in his interpretation of a study . . . supporting the relationship between coal dust exposure and centrilobular

emphysema." Id. While Dr. Fino discussed a more recent study that

purported to support his position, he did not "identify the study by

title or author." Id. The ALJ added:

More importantly [Fino’s] characterization of the proposition for which the [more recent] study stands, that is, it distinguishes the centrilobular emphysema from smoking from

the focal emphysema arising out of coal mine inhalation, is

not inconsistent with Dr. Rasmussen’s opinion that centrilobular emphysema can also be caused or aggravated by coal

dust. 

Id. The ALJ also credited Rasmussen’s opinion over the opinions of

Drs. Hutchins and Bush because their opinions were not as well supported or documented as Dr. Rasmussen’s. He explained that Dr.

Hutchins and Bush’s reports did not even indicate an awareness of the

studies referenced by Dr. Rasmussen. 

We find that the ALJ gave specific and sufficient reasons for crediting Dr. Rasmussen’s opinion, and substantial evidence supports the

ALJ’s finding that Rowan’s coal dust exposure caused his centrilobular emphysema. We therefore conclude that the ALJ did not err in

determining that coal dust exposure was a substantially contributing

cause of Rowan’s death. 

IV.

Accordingly, the opinion of the Board is affirmed. 

AFFIRMED

9Dr. Rasmussen cited two articles that Dr. Ruckley wrote on emphysema and coal dust exposure. 

8 BETHENERGY MINES v. ROWAN